CASE NO. 5692 CRB-7-11-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 13, 2012
ROBERTO S. DUARTE
FRANSTEL OF CT CORP.
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Brendan T. Canty, Esq., The Law Office of B.T. Canty, Esq., P.C., 193 East Avenue, Norwalk, CT 06855.
Respondent Franstel of CT Corp., was represented by Randi Haraj-Sai, Esq., Williams Moran LLC, P.O. Box 550, Fairfield, CT 06824.
Respondent Second Injury Fund did not appear at oral argument. At proceedings below, the Second Injury Fund was represented by Assistant Attorney General Catherine Rawson, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106.
This Petition for Review from the October 24, 2011 Finding and Award of the Commissioner acting for the Seventh District was heard on April 27, 2012 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Daniel E. Dilzer and Clifton E. Thompson.1
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer (hereinafter “respondent”) in this matter, Franstel of CT Corp., has petitioned for review from the October 24, 2011 Finding and Award of the Commissioner acting for the Seventh District. We find no error and accordingly affirm the decision of the trial commissioner.2
The trial commissioner, having determined that all of the parties were subject to the provisions of the Connecticut Workers’ Compensation Act, Chapter 568 of the Connecticut General Statutes, made the following factual findings which are pertinent to our review. At the formal hearing of October 26, 2010, the claimant offered the following testimony. On January 12, 2010, Jesus Alvarado, an employee of the respondent Franstel of CT Corp., asked the claimant to work with him on a job removing branches.3 Frank Serpe, the owner of Franstel of CT Corp., had made the request by way of a phone call to Alvarado that morning.4 The claimant and Alvarado first went to Serpe’s home because they did not have any gas in the truck, then to Serpe’s garage to pick up the equipment needed for the job, and then to the job site. Serpe accompanied the claimant and Alvarado to get the gas but the claimant did not speak with Serpe. The claimant did not know the name of the gas station but said it was located on Hope Street. When he and Alvarado reached the job site, the claimant set up a ladder and began cutting branches from a tree. At some point during the removal of the first two branches, the owner of the home came out and told the claimant he was doing a good job. However, while the claimant was attempting to cut down a third branch, another branch fell and hit the claimant’s ladder, causing him to fall forty feet.
Unable to walk, the claimant dragged himself to the truck, where Alvarado called Serpe to tell him the claimant was injured. Although Serpe told Alvarado to go to the hospital, Alvarado took the claimant to Serpe’s home to show him that he had really been injured. However, Serpe was not at home so the claimant and Alvarado went to the hospital. The claimant only worked one day and did not know his rate of pay. The claimant testified at his deposition on August 4, 2010 that Serpe had told Alvarado to tell the doctor the claimant had slipped on the ice and Serpe told the claimant “he was going to help [him] with the medicines.” Respondent’s Exhibit 1, p. 24.
At a deposition held on October 12, 2010, Jesus Alvarado testified as follows. On January 11, 2010, Serpe called Alvarado and asked him to bring another person to work with him on a job scheduled for the following day because the individual with whom Alvarado usually worked was going with Serpe’s wife to clean houses. On January 12, 2010, before Alvarado and the claimant went to the work site, they stopped at Serpe’s home so Alvarado could “show him” the claimant. Joint Exhibit 1, p. 18. Serpe, Alvarado and the claimant then went to get gas for the truck. Alvarado did not know the name of the gas station. After returning from getting the gas, Alvarado went into Serpe’s garage and picked up a ladder and a chain saw before leaving for the work site. Alvarado did not know the address of the work site, and identified it only as being “around Westover.” Id., at 14.
Alvarado and the claimant arrived at the job site between 9:00 a.m. and 10:00 a.m. and Alvarado did not remember the homeowner being there. Alvarado and the claimant were planning to cut down three branches but at 1:00 p.m., after cutting the second branch, the claimant fell approximately thirty feet. Alvarado tried to pick up the claimant but he could not stand up; when he and the claimant got back into the truck, Alvarado called Serpe to tell him the claimant had been injured and Serpe told him to take the claimant to the hospital. Serpe also said to tell the hospital personnel that the claimant had fallen on the sidewalk, not that he had fallen out of a tree. Instead, Alvarado took the claimant to Serpe’s home “to show him how beat up he was” id., at 22, because “maybe he wouldn’t believe that he had fell.” Id., at 23. However, Serpe was not at home, and Alvarado and the claimant proceeded to the hospital.
Frank Serpe also testified in this matter, offering the following. Franstel of CT Corp., is a general landscaping and snow removal company. Serpe, the owner of the business, owns two ladders, one a twelve-foot step ladder and the other an eighteen-foot extension ladder which, when fully extended, cannot reach forty feet. He identified the instant work site as 19 West Hill Road in Stamford, Connecticut and indicated that he subcontracts all of his tree work for this property to Catolino’s Tree Service because his company’s tree-cutting services are restricted to trimming low-lying branches of twelve feet or less and cleaning up any branches that may have fallen during storms. He identified Alvarado as an employee who was allowed to park the truck at his residence and use it for side jobs. Alvarado was also responsible for picking workers up in the morning and dropping them off after work. Serpe did not speak with Alvarado on January 11, 2010, and Alvarado did not have the authority to subcontract employees on Serpe’s behalf. Alvarado was scheduled to work from 9:00 a.m. to 12:00 a.m. on January 12, 2010, cleaning out Serpe’s garage; however, Alvarado did not stop by Serpe’s house on that date and they did not go together to get gas. The closest place to get gas is a “Mini Mart” on Cove Road and Serpe usually gets his gas there.5 Serpe denied receiving a phone call about the claimant falling from a tree and telling Alvarado to take the claimant to the hospital and lie about the nature of the claimant’s injury.
Serpe’s cell phone records for the month of January, which were submitted into evidence, indicated that on January 12, 2010, Serpe received incoming calls from the claimant’s cell phone at 10:02 a.m., 11:54 a.m., 12:22 p.m., 2:19 p.m., 3:29 p.m. and 10:04 p.m. However, Serpe testified that one of the phone calls from Alvarado on the morning of January 12, 2010, concerned putting something in the garage and the call at 12:22 p.m. was to alert Serpe that Alvarado had finished the job. Serpe also testified that the claimant was drunk when he called him at 10:04 p.m. and didn’t realize he had called Serpe. Serpe estimated that it would take forty-five minutes to get from the work site at 19 West Hill Road in Stamford to Serpe’s home and then to the Stamford Hospital.
Michael Cantanzarita of Cat Investigative Services, LLC, reported that the travel time from the work site to Serpe’s residence to Stamford Hospital takes twenty-seven minutes. The Stamford Hospital medical records indicate that the claimant arrived at the hospital at 12:53 p.m. and the claimant was injured by slipping on ice; the emergency room physician, Ravi Thakur, M.D., reported that the claimant fractured his back. However, on March 17, 2010, William C. DeAngelo, R.R.T., D.C., a chiropractor, reported that the claimant’s injury was “directly related to a severe compressive force to the lumbar spine which correlates from falling from a significant height. It is not probable that this [type] of injury can happen from a slip injury.” Claimant’s Exhibit C.
On September 20, 2010, Sandra Aviles, a Special Investigator for the State of Connecticut, Office of the Treasurer, filed a report indicating that Franstel of CT Corp., did not have workers’ compensation insurance on January 12, 2010.
Having reviewed the foregoing, the trial commissioner arrived at the following conclusions. Noting that she found the claimant’s testimony more persuasive and credible than that of Serpe, and that she also found Alvarado’s testimony persuasive and credible, she determined that Serpe is the owner of Franstel of CT Corp., and that the company provided landscaping and tree service for 19 West Hill Road in Stamford. She found that Alvarado presented the claimant to Serpe on January 12, 2010 before going to the job site. The trial commissioner concluded that the phone call that was placed from the claimant’s cell phone to Serpe at 12:22 p.m. was to alert Serpe that an accident had occurred, thereby establishing that the actual time of injury was closer to 12:00 p.m. than 1:00 p.m., and that Alvarado and the claimant were therefore mistaken about the time the accident occurred. She also deemed credible the investigative report provided by Michael Cantanzarita which estimated that it takes twenty-seven minutes to get from the work site to Serpe’s home and then to Stamford Hospital, and found that the claimant checked into Stamford Hospital at 12:53 p.m., thirty-one minutes after the phone call to Serpe alerting him that the claimant had been injured.
Noting that all of the Stamford Hospital records reflect that the claimant was injured by falling on ice, the trial commissioner determined that the medical records lack probative value because she found the testimony of the claimant and Alvarado credible regarding Serpe’s instructions to them “not to be truthful” about how the claimant sustained his injuries. Conclusion, ¶ K. She also found credible the Stamford Hospital emergency room report of Dr. Thakur indicating that the claimant had fractured his back and the March 17, 2010 report of Dr. DeAngelo indicating that the claimant’s back injury correlates with a fall from a significant height rather than a slip.
The trial commissioner concluded that Alvarado was an employee of the respondent Franstel of CT Corp., and “was authorized to act as an agent for the Respondent-Employer to hire the Claimant on January 12, 2010 to remove branches from a tree at 19 West Hill Road, Stamford,” Conclusion, ¶ E. The trial commissioner also determined that because Serpe, in his capacity as the owner of Franstel of CT Corp., provided the tools to the claimant and “had the right to control the work” done by the claimant, an employer-employee relationship existed between the claimant and Franstel of CT Corp. on January 12, 2010. Conclusion, ¶ N. The injuries sustained by the claimant on said date therefore arose out of and in the course of the claimant’s employment with Franstel of CT Corp., which did not have a workers’ compensation policy in place on the date of injury. Accordingly, the trial commissioner ordered Franstel of CT Corp., to pay all workers’ compensation benefits associated with the claimant’s injury of January 12, 2010, including but not limited to medical and pharmaceutical bills and travel expenses.
The respondent filed a Motion to Correct to which the claimant objected and which the trial commissioner denied in its entirety, and this appeal followed. On appeal, the respondent cites several claims of error. The first is whether the trial commissioner erred as a matter of law in failing to grant the respondent’s Motion to Correct dated November 7, 2011. The respondent contends that “the Commissioner omitted several admitted and undisputed material facts which, had they been considered, would have impacted the outcome in this case.” Appellant Brief, p. 5. The second is whether the trier’s determination that an employer-employee relationship existed between Franstel of CT Corp., and the claimant was inconsistent with the subordinate facts found by the trier.6
The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled.
... the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
We begin our analysis with the respondent’s contention that the trial commissioner erroneously denied its Motion to Correct. Before turning to the respondent’s specific allegations, it is helpful to review the standard of review governing such motions. As this board has previously observed, we “may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts.” Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998), citing, Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (February 6, 1995). “A material fact is one that will affect the outcome of the case.” Tovish v. Gerber Electronics, 32 Conn. App. 595 (1993), appeal dismissed, 229 Conn. 587 (1994). Thus, “[a] Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings.” Pallotto, supra, citing, Knoblaugh, supra. See also, Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (November 7, 1994).
On appeal, the role of this board is to assess whether the trial commissioner was compelled to grant any of the respondent’s proposed corrections in light of this rather stringent standard. As the respondent correctly points out, the claimant’s claim is indeed “predicated on Mr. Alvarado having received direction from Mr. Serpe to ‘hire’ the Claimant for one day.” Appellant’s Brief, p. 5. Moreover, there is no question that Alvarado and the claimant gave conflicting testimony relative to when Alvarado retained the services of the claimant.7 We also note that the call detail records submitted into evidence do not list any phone calls between the respondent and the claimant’s cell phone on January 11, 2010 and the first phone call on January 12, 2010 between Serpe and Alvarado did not occur until 10:02 a.m. Respondent’s Exhibit 3, Claimant’s Exhibit D.
In light of the foregoing, the respondent queries how the trial commissioner could have found that the claimant and Alvarado commenced work on January 12, 2010 at 9:30 a.m., given that the record demonstrates that no cell phone call between the parties occurred either on January 11, 2010 or before 9:30 a.m. on January 12, 2010. The respondent relies on these phone records as well as the inconsistent testimony of the claimant and Alvarado for its contention that “Serpe could not have directed or permitted Mr. Alvarado to engage the Claimant’s services for the day as he never had the opportunity to speak to either of them prior to their commencement of work or arrival at the job site.” Appellant’s Brief, p. 6. The respondent avers that the other events alleged to have occurred on January 12, 2010 also could not have happened, and if the trial commissioner had included all of the above-referenced facts in her Finding and Award, she would not have been able to conclude that the claimant was employed by Serpe.
We are not so persuaded. There is no question that the claimant, Alvarado and Serpe provided inconsistent testimony relative to the communications which resulted in the claimant accompanying Alvarado to the work site on January 12, 2010.8 In fact, given the inconclusive nature of the evidence presented, it may be confidently stated that it is impossible to identify with any degree of precision the actual time line of events for the date in question. Nevertheless, the trier obviously concluded that despite the inconsistencies between the phone records and the parties’ testimony, the uncertainty created therefrom did not form an insurmountable barrier to the reasonable inference that at the time the injury occurred, an employer-employee relationship existed between the respondent and the claimant. It is axiomatic that determinations regarding the weight of the evidence and the credibility of the witnesses lie solely within the province of the trier. Mele v. Hartford, 118 Conn. App. 104, 107 (2009). Given, then, that the additional factual findings propounded by the respondent regarding the precise circumstances under which Alvarado retained the services of the claimant did not change the trier’s ultimate conclusion that an employer-employee relationship existed between the respondent and the claimant, the trier was under no compunction to grant the sought-for corrections. As this board has previously observed, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).
Similarly, the respondent asserts that the trial commissioner, in rejecting its proposed corrections, failed to give appropriate credence to Serpe’s testimony regarding his practice of using a sub-contractor for large treetrimming projects. The trial commissioner also erroneously failed to assign appropriate evidentiary weight to the respondent’s submission of receipts, invoices and a canceled check attesting to the respondent’s use of a sub-contractor for treetrimming at the subject residence on several dates, none of which included the date of injury. Again, it is the prerogative of the trier to assess the probative value of the testimony and exhibits, and if the corrections sought by the respondent did not persuade the trier to alter her findings in its favor, then this board cannot reverse these findings on appeal.
The respondent also contends that the trial commissioner neglected to take into consideration “several undisputed facts that, while alone are not determinative, together demonstrate that the Claimant was not Mr. Serpe’s employee.” Appellant’s Brief, p. 7. The respondent asserts that these facts should have been accorded greater deference as they were offered by the claimant himself, whom the trial commissioner found credible. For instance, at his deposition, the claimant testified to the following: the claimant never discussed with Serpe how much or in what manner the claimant would be paid; the claimant never asked Serpe for any pay; the claimant only expected to work for one day; and Serpe did not supervise the worksite or give the claimant instructions. Respondent’s Exhibit 1, pp. 16-17. The respondent avers that had the trial commissioner assigned these facts the appropriate weight and incorporated them into her findings, the trier would have had no alternative but to conclude that no employer-employee relationship existed, thereby depriving the workers’ compensation commissioner of jurisdiction over the claim. Such a determination would be critical, because:
[t]he entire statutory scheme of the Workers’ Compensation Act is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act; a claimant or his representative who is not an employee has no right under this statute to claim for and be awarded benefits. The act is not triggered by a claimant until he brings himself within its statutory ambit.
Castro v. Viera, 207 Conn. 420, 433 (1988).
In Hanson v. Transportation General, Inc., 245 Conn. 613 (1998), our Supreme Court, articulating the distinction between an employee and an independent contractor, stated that the “ultimate test” for determining whether a worker is an employee as defined by the Workers’ Compensation Act “is the right of general control of the means and methods used by the person whose status is involved.” Id., at 617, quoting Ross v. Post Publishing Co., 129 Conn. 564, 567 (1943). This board has previously observed that the Hanson court established a “totality of the evidence” test which obligates a trial commissioner to “weigh all the factors relevant to employment status prior to reaching a decision. This decision will be driven by the specific facts of each case presented.” (Emphasis in the original.) Maskowsky v. Fed Ex Ground, 5200 CRB-3-07-2 (July 28, 2008); see also, Hanson, supra, at 624. In addition, “[i]t is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697 (1995). “As a general principle, a hiring entity retains control only over the results of an independent contractor’s work, while an employer’s will governs the employee ‘regarding both the fruits of [their] labor and the mode and manner in which [their] services are performed.’” Lema v. Eoanou, 5056 CRB-4-06-2 (January 29, 2007), quoting Morrissey v. Lannon-Norton Associates, 3085 CRB-4-95-6 (December 23, 1996).
In the instant matter, the respondent asserts that “[t]here exists only one factor in the present case on which the Commissioner could have relied in finding that the Claimant was Mr. Serpe’s employee: the Claimant’s contention that Mr. Serpe provided him with tools to perform the tree cutting.” Appellant’s Brief, p. 9. See also October 26, 2010 Transcript, p. 7. However, our review of the record indicates that at his deposition, the claimant also testified, in direct contradiction to Serpe’s testimony, that he had met Serpe prior to the date of the injury because “Jesus Alvarado used to work for him, and he always was coming to the house.” Respondent’s Exhibit 1, p. 8. The claimant indicated that Serpe frequently came over because he had given Alvarado the use of the truck, and denied that Serpe’s truck was being garaged there because there was no room to store it in Stamford. Id., at 8-9. The claimant stated that he spoke briefly with Serpe on the morning of the accident before they all went to get gas but that “mostly [Serpe] spoke about the job with Jesus because I answered the phone and I passed the phone to Jesus.” Id., at 11. Although the claimant did testify that Serpe did not supervise Alvarado and him at the job site, he also stated that “I was told by Jesus what we were supposed to be doing.” Id., at 16.
At trial, the claimant reiterated that Alvardo worked for Serpe and would use the claimant’s cell phone to speak with Serpe about jobs. The claimant testified:
We got a call in the morning that the boss was calling Jesus Alvarado. That he go do some work of getting rid of some branches. Because he had no one else to go work with, Mr. Alvarado, he asked me if I could go work with him because I have done that kind of work before. He talked to the boss and he told him it was all right.
October 26, 2010 Transcript, p. 7.
The claimant also repeated that he had previously met Serpe at the residence he shared with Alvardo and that Serpe had given Alvarado a truck to use on the job. Id., at 8-9. The claimant again testified that he worked with Alvarado on the subject property and Alvarado told him what they were supposed to be doing.9 Id., at 10. When queried under cross-examination regarding the discrepancy between the time the claimant remembered receiving the phone call from Serpe and the fact that he thought they arrived at the job site before that time, the claimant said, “I don’t know. If that’s the call, that’s the call. But we got a call early.” Id., at 13. When asked why he testified that they arrived at the job site at 9:30 a.m., the claimant answered, “[t]hat was more or less what I put because I didn’t know what was going on.” Id. When pressed further, the claimant again replied, “Is it correct? I don’t know. How much more? That’s what I said because after the call I went there. That’s all.” Id., at 14. Later, while still under cross-examination and being repeatedly questioned regarding the time line for the date of injury, the claimant said, “I don’t remember. I’m very bad with this. I don’t know.” Id., at 19. He stated several times that he didn’t know, he was “very bad,” and, ultimately, “I’m confused.” Id., at 19-20.
The evidentiary record demonstrates that Jesus Alvarado’s memory was similarly vague regarding the exact date and sequence of the events in question. Alvardo testified that the gentleman with whom he usually worked went with Serpe’s wife on a housecleaning job and Serpe called him the day before “to get another person to go and cut the trees.”10 Joint Exhibit 1, p. 15. While Alvardo’s testimony was inconclusive vis-a-vis the exact time when he actually spoke with Serpe on the date of injury, he testified that he thought he and the claimant began working between 9:00 a.m. and 10:00 a.m. and that beforehand, he “stopped by [Serpe’s] house to tell him I don’t have any gas and show him the helper I had.” Id., at 17-18. Alvarado also testified that he worked with the claimant all morning. Id., at 20. For his part, at trial, Serpe testified that Alvarado did keep his truck at Alvarado’s house for “convenience purposes” because Alvarado “would pick up the workers in the morning and drop them off after work.”11 February 17, 2011 Transcript, p. 6. Although the phone records do not show a cell phone call between Serpe and Alvarado on January 11, 2010, Serpe admitted that Alvarado worked on January 12, 2010 and his time sheet for that day indicated that he worked from 9:00 a.m. to 12:00 p.m.12 Id., at 12. Serpe conceded that he received a number of phone calls from the claimant’s cell phone on January 12, 2010 and explained that the first call at 10:02 a.m. was Alvarado calling to ask where to put something in the garage. Id., at 14. Serpe offered no explanation for the other phone calls and denied that Alvarado ever called regarding the claimant’s injury. Id.
Having reviewed the foregoing, it is readily apparent that the trial commissioner was obliged to sift through a great deal of contradictory testimony in order to reach her conclusions in this matter. Moreover, although the respondent points out that the interactions between Serpe and the claimant were minimal at best, our review of the trier’s findings reveals that she specifically found that Alvarado was authorized to act as Serpe’s agent when he hired the claimant. Conclusion, ¶ E. Under this legal doctrine, the trier therefore inferred that Alvarado had “stepped into the shoes” of Serpe and assumed his role as the employer.
Our Supreme Court has defined apparent authority as “that semblance of authority which a principal, through his own act or inadvertences, causes or allows third persons to believe his agent possesses.” Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665 (1967) (citation omitted).
Our cases make it clear that apparent authority is to be determined, not by the agent’s own acts, but by the acts of his principal. And the acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.
Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69 (1969) (citations omitted).
However, the instant respondent challenges the trier’s application of agency doctrine, asserting that “[e]ven if one is to accept, as the Commissioner did, that Mr. Alvarado was Mr. Serpe’s agent, that factor alone does not alter the fact that the Claimant was not an employee. Neither the Claimant nor Mr. Alvarado claim that Mr. Alvarado oversaw the Claimant’s work in any way.” Appellant’s Brief, p. 12. We disagree, finding that even the most cursory reading of the claimant’s testimony previously set forth herein reveals that the claimant not only believed Alvarado was acting on Serpe’s behalf but he also believed Alvarado was responsible for supervising his actions as the job site. Moreover, although the claimant testified that he did not discuss payment with either Serpe or Alvarado, it cannot be reasonably inferred from the instant record that the claimant agreed to climb a ladder in January and trim tree branches without any expectation that he would be paid for his efforts. Rather, the more logical inference is that the conversation about payment which would have occurred upon completion of the job was pre-empted by the accident and the severity of the claimant’s injuries.
Thus, in light of the trier’s conclusion that Alvarado was acting as Serpe’s agent, we find unavailing the respondent’s argument that the record demonstrated insufficient interaction between Serpe and the claimant such that the existence of an employer-employee relationship could be reasonably inferred. In addition, while the respondent set forth a great deal of case law to buttress this argument, we find the examples cited unpersuasive when viewed through the prism of the agency relationship between Serpe and Alvarado. Moreover, the trier ultimately chose to place more credence in the testimony of the claimant and Alvarado than that of Serpe. This determination was her prerogative as a fact-finder and one which we, as an appellate body, are prevented from second-guessing on appeal.
Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.
Burton v. Mottolese, 267 Conn. 1, 40 (2003).
The respondent also contends that even if one assumes that “Serpe did have the right to control the Claimant’s actions on the day he was injured, the Claimant was, at best, a casual employee and thus exempt from workers’ compensation coverage.” Appellant’s Brief, pp. 13-14. “As used in our Act, the casual employment means the occasional or incidental employment, the employment which comes without regularity.” Thompson v. Twiss, 90 Conn. 444, 451 (1916). Casual employees are exempt from workers’ compensation coverage pursuant to the provisions of § 31-275(9)(B)(ii) C.G.S., which states that an employee “shall not be construed to include: . . . [o]ne whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.” In order to prove that an employee is exempt from coverage, a respondent therefore “must establish that both prongs of this test are met, i.e., the claimant’s employment was not frequent or systematic and that it was not for the purposes of the respondent’s trade or business.” Mangual v. Andrew LeBlanc d/b/a Express Tiles, 4957 CRB-1-05-6 (April 26, 2006).
We concede that the instant record illustrates that the claimant’s employment with Franstel of CT Corp., was neither frequent nor systematic. As the respondent points out, the claimant allegedly worked for less than one day and the claimant himself testified that he had never worked for Serpe before and only expected to work for the one day. October 26, 2010 Transcript, p. 10. Respondent’s Exhibit 1, p. 17. The case law cited by the respondent “illustrate[s] the fact that a claimant’s expectation that his work for the respondent will continue for some period of time is a necessity in determining that an employer-employee relationship existed.” (Emphasis in the original.) Appellant’s Brief, p. 15. Clearly, the claimant had no such expectation.
However, in order for a respondent employer to claim the exception, the second prong of the legal standard must also be satisfied. In rendering this assessment in prior cases, we have generally examined whether the activities carried out by the claimant “went to the core functions of the respondent’s ... business.” Mangual, supra. In the instant matter, we recognize that Serpe testified that his business did not engage in the practice of tree-cutting and he would sub-contract out requests that he received for treecutting to another company. Respondent’s [Second Injury Fund] Exhibit 2, p. 45; February 17, 2011 Transcript, p. 4. In addition, as mentioned previously herein, the respondent submitted receipts, invoices and a post-dated check attesting to the fact that he had used a tree service at the subject property on dates other than the date of injury. Respondent’s Exhibits 5, 7, 8. However, we also note that at trial, Serpe testified that his company would trim “low-lying” branches up to heights of approximately twelve feet, February 17, 2011 Transcript, p. 4, and that in addition to snow-plowing in the winter, his employees would also “do some brush removal if any tree limbs had fallen during the winter, if there’s no snow on the ground, depending. I try to keep the guys with a couple hours and there, if possible.” Respondent’s [Second Injury Fund] Exhibit 2, p. 30.
In light of the foregoing testimony and referenced exhibits, the respondent contends that the activities engaged in by the claimant were outside the scope of the respondent’s business and certainly did not constitute a “core function.” Nevertheless, the trial commissioner, on the basis of the entire record, was not persuaded that the treecutting engaged in by the claimant was so far removed from the core functions of the respondent’s landscaping service that the second prong of the legal standard for casual employment was satisfied. In Thompson, supra, our Supreme Court, in concluding the claimant’s activities relative to the land owned by the respondent also did not satisfy this second prong of the legal standard for casual employment, remarked, “[t]he development of this land was one of the businesses of Mr. Twiss, not evidently his main business, and yet a very substantial one. The plaintiff was injured in the pursuit of Mr. Twiss’ business, and his employment was not of a casual nature within the meaning of our Act.” Thompson v. Twiss, 90 Conn. 444, 452 (1916). In the instant matter, although the respondent testified that his landscaping business did not engage in tree-cutting, the trial commissioner inferred otherwise. Accordingly, she declined to find that the activities performed by the claimant on the date in question brought him under the rubric of casual employment as defined by our Act. We will not reverse this finding on appeal. “It is ... immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).
Having found no error, the October 24, 2011 Finding and Award of the Commissioner acting for the Seventh District is hereby affirmed.
Commissioner Daniel E. Dilzer concurs in this opinion.
1 Commissioner Clifton E. Thompson heard this appeal but passed away prior to the issuance of this opinion. BACK TO TEXT
2 We note that three motions for extension of time were granted during the pendency of these proceedings. BACK TO TEXT
3 In her Finding and Award of October 24, 2011, the trial commissioner occasionally referred to Jesus Alvarado as “Mr. Alvarez.” We deem this a harmless scrivener’s error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT
4 The claimant testified that because Alvarado did not own a cell phone, the claimant would lend Alvarado his. October 26, 2010 Transcript, p. 7. BACK TO TEXT
5 At his deposition on August 4, 2010, Serpe testified that he does not have a regular place to get gas but generally gets it where it is the cheapest. Respondent’s [Second Injury Fund] Exhibit 2, p. 36. BACK TO TEXT
6 On October 26, 2011, the respondent employer filed a Motion for Mistrial and Request for Trial De Novo, followed by a Supplemental Memorandum of Law in Support of Motion for Mistrial and Request for Trial De Novo on November 4, 2011. The respondent contends that the trial commissioner’s Finding and Award of October 24, 2011 is void because she failed to comply with the provisions of § 31-300 C.G.S., which states: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of the commissioner’s findings and award.” The respondent argues that the record in this matter closed on June 24, 2011, and the trier’s decision should therefore have been issued on Saturday, October 22, 2011. We are not so persuaded, as we find the respondent’s interpretation of § 31-300 C.G.S. to be at variance with P.B. Sec. 63-2, which provides: “When the last day of any limitation of time for filing any paper under these rules or an order of the court falls on a day when the office of the trial court or of the appellate clerk is not required to be open, the paper may be filed on the next day when such office is required so to be open.” The respondent’s position would also seem to be at variance with P.B. Sec. 7-17, which states: “If the last day for filing any matter in the clerk’s office falls on a day on which such office is not open …, then the last day for filing shall be the next business day upon which such office is open.” Moreover, “[a]t common law, when the terminal day for filing legal papers fell on a holiday or Sunday, the plaintiff was able to make performance on the following day.” Brennan v. Fairfield, 255 Conn. 693, 698 (2001). In Lamberti v. Stamford, 131 Conn. 396 (1944), our Supreme Court remarked, “[c]ertainly when the legislature declares a day to be a holiday, it means at least to free public officers from the obligation of keeping open their offices or attending to their duties on that day, and it might well be that on such a day the officer or officers of a municipality to whom, under the statute, notice must be given would be out of town and far away…. No doubt a notice given to a proper officer of the municipality upon a holiday within the period allowed by the statute would be valid. But if the last day of the period falls on a holiday, the giving of notice on the next day is a sufficient compliance with the statute.” Id., at 400-401. In light of the fact that the offices of the Workers’ Compensation Commission are closed on Saturday and Sunday, we find the dictates of common sense would suggest that the foregoing analysis with regard to the extension of filing deadlines can be applied with equal conviction to the circumstances herein given the “impossibility of performance” associated with the issuance of a trial commissioner’s decision on a Saturday. BACK TO TEXT
7 As noted previously herein, the claimant contends he was hired on the date of injury as a result of a phone call that morning from Serpe to Alvarado, while Alvarado testified that he didn’t remember the date when Serpe called him and asked him to get someone to help him cut the trees but the phone call occurred the day before the injury. October 26, 2010 Transcript, pp. 7, 12; Joint Exhibit 1, pp. 14-15. BACK TO TEXT
8 Contrary to the assertion of the respondent, our review of the Finding and Award does not indicate that the trier concluded that Alvarado and the claimant commenced work at 9:30 a.m., but only that Alvarado testified to that. Findings, ¶ 18. BACK TO TEXT
9 The claimant denied knowing anything about an affidavit in which Alvarado testified differently. October 26, 2010 Transcript, p. 10. BACK TO TEXT
10 At his deposition held on October 12, 2010, Alvarado stated that he could not remember either the date he was asked to perform the work at the subject property or the date that he actually performed the work, only recalling that it was in January. Joint Exhibit 1, pp. 14-15. BACK TO TEXT
11 At his deposition on August 4, 2010, Serpe initially testified that he garaged his trucks at his home and at one of his yards, and then that one truck was garaged at Alvarado’s place because he had room for it. Respondent’s [Second Injury Fund] Exhibit 2, pp. 7, 35. BACK TO TEXT
12 Jesus Alvarado’s time sheet for the date in question was submitted into evidence, and Serpe explained that the hand-written entry at the top is “a note of the gas station where we buy gas and the name of the tree service.” February 17, 2011 Transcript, p. 10. See also Respondent’s Exhibit 10. At trial, Serpe testified that he usually obtained gas at the Cove Mini Mart, but at his deposition, he testified that he does not have a regular gas station but, rather, gets gas where it is the cheapest. Id., at 13; Respondent’s [Second Injury Fund] Exhibit 2, p.16. BACK TO TEXT